January 2009, Page 32

Defending Internet Pornography Cases By Challenging Interstate Jurisdictional Elements Under U.S. v. Schaefer
By Colin Fieman

Defending clients charged with receipt or possession of child pornography presents unique challenges. Apart from the mental health problems clients may be laboring under and the visceral reaction judges and jurors have to these types of offenses, many pornography cases arrive with damaging admissions, forensic reports from government computer experts, and draconian penalties. As the recent decision in United States v. Schaefer1 shows, however, Internet pornography cases can sometimes be successfully defended by focusing on the frequently overlooked interstate commerce element of the receipt and possession statutes.2

For practitioners who may be unfamiliar with these statutes, it is important first to note that an interstate commerce defense has nothing to do with the power of Congress under the Constitution’s interstate commerce clause to criminalize receipt or possession of pornography. That authority cannot be seriously disputed.3 Instead, the defense arises from the interstate jurisdictional elements in the statutes themselves. For example, 18 U.S.C. § 2252 prohibits receipt of any “visual depiction” of child pornography that has been “mailed, or has been shipped or transported in interstate or foreign commerce … by any means, including a computer.”4 As the plain text of the statute indicates, the government must prove that any images charged against a defendant “moved across state lines.”5 For Internet receipt and possession cases, the issue is what kind of evidence is required to prove that images circulated by e-mail, downloaded from a Web site, or otherwise transmitted over the Internet, in fact, crossed state lines. The answer to that question or, more accurately, the lack of an easy answer, can be critical to the defense of Internet-related cases.

Narrow Jurisdictional Element
To begin, it is important to recognize that, by requiring proof that illicit images were moved or transmitted across state lines, Congress enacted a relatively narrow jurisdictional element.6 If Congress had wanted to extend federal authority to prosecute as far as possible, it could have adopted a jurisdictional element that merely required proof that the defendant used an “instrument of interstate commerce” while committing a receipt or possession offense.7 If the statutes had been written that way, merely accessing the Internet to download illicit images would probably be enough to prove the interstate element.

Instead, Congress apparently recognized that the states already proscribe possession of child pornography and sought to limit federal prosecutions to more serious cases or those involving multiple jurisdictions, where interstate activity is clearly involved.8 Moreover, regardless of the actual intent of Congress, courts are required to construe and apply jurisdictional elements narrowly.9 When it comes to proving these elements, however, prosecutors almost invariably offer no proof that the visual depictions (or more accurately, data files that can reproduce a depiction on a computer) were transmitted to a defendant’s computer from a location in another state or country.

For these reasons, a primary focus of defending these types of cases should be the sufficiency of proof related to the interstate elements. The interstate evidence offered by the government (or lack of it) in Schaefer is typical. There, defendant William Schaefer was charged with both receipt and possession of images from a subscription Web site.10 Law enforcement agents found illicit images on Schaefer’s computer hard drive and a CD, and he admitted looking for child pornography on the Internet.11 At the same time, there was “no evidence [that] indicated where the Web sites Schaefer accessed were based, where the servers for those Web sites were located, or where Schaefer’s Internet provider’s server was housed.”12 Upon conviction following a bench trial, Schaefer argued on appeal that “the complete absence of proof at trial that the images he possessed and received traveled across state lines requires an acquittal, as the jurisdictional nexus is an essential element of the statute.”13

In response, the government argued that proof that Schaefer had downloaded images from the Internet was the functional equivalent of proving that the images crossed state lines.14 In making this argument, the government relied on several cases which, “at least upon cursory inspection,” appear to support the proposition that Internet usage alone is sufficient to prove the interstate element.15 The Tenth Circuit, after a detailed analysis of the cases, concluded otherwise.

Carroll and MacEwan
One case the government relied on in Schaefer is readily distinguishable on its facts. In United States v. Carroll,16 the First Circuit stated that the transmission of pictures over the Internet is “tantamount” to proof of movement across state lines.17 The Schaefer court, however, recognized that Carroll addressed a different statute that proscribes the production of images that “will be transported in interstate or foreign commerce.”18 In Carroll, the defendant had admitted a plan to distribute pictures over the Internet from a friend’s computer.19 Since the government also proved that the pictures were taken in New Hampshire and the friend’s computer was in Massachusetts, the court concluded that “interstate transportation perforce would have occurred when [the defendant] carried the fruits of his labor across the New Hampshire border into Massachusetts.”20 It was only in light of this evidence that the court was satisfied that the interstate element had been proven. The Schaefer court recognized that, by contrast, the receipt and possession statutes require proof that the visual depictions at issue were sent or carried across state lines before reaching the defendant, an entirely different evidentiary situation.

Another case the government relied on was based on a completely misguided analysis of the interstate elements. In United States v. MacEwan,21 a Comcast Internet service provider had testified that the defendant’s computer was connected to a “regional data center” in his home state of Pennsylvania and that it was impossible to determine whether the data sent to his computer was processed entirely intrastate or involved connections and transmissions across state lines.22 The Third Circuit, however, concluded that since the Internet itself “is an instrumentality and channel of interstate commerce, it therefore does not matter whether MacEwan downloaded the images from a server located in Pennsylvania or whether those images were transmitted across state lines.”23

In reaching this conclusion, the Third Circuit uncritically adopted Carroll’s “tantamount” language, overlooking the fact that it had nothing to do with the offenses charged against MacEwan, then proceeded to thoroughly confuse use of an instrumentality of interstate commerce with actual transportation or transmission across state lines.24 As a result, as the Schaefer court found, the Third Circuit “recast the jurisdictional requirement of the child pornography statute into one that could be satisfied by use of an ‘interstate facility’ and determined that the Internet was such a facility.”25 In doing so, the Third Circuit simply ignored all of the case law that distinguishes the scope of jurisdictional elements that are based on “transportation” in interstate commerce as opposed to far more inclusive instrumentality elements.26

This type of result-oriented opinion is not unusual in pornography cases, where judicial antipathy to the nature of the offense makes it difficult to engage courts in the type of detailed factual and legal analysis that new computer and Internet technologies require. Even so, the MacEwan decision is remarkable for its transparently faulty reasoning.27

The Schaefer court recognized the shortcomings of the MacEwan opinion, and instead concluded that “it is not enough to assume that an Internet communication necessarily traveled across state lines in interstate commerce.”28 While “in many, if not most, situations the use of the Internet will involve the movement of communications or materials between states … [t]his fact does not suspend the need for evidence of this interstate movement.”29

As a practical matter, the first step in building on the reasoning in Schaefer is to retain an expert witness who can demystify the Internet for a judge or jury. As any competent expert on the Internet can testify, many Internet transmissions and downloads are entirely intrastate.30 Much like a local telephone call or many radio transmissions, the data sent to a client’s computer may have been transmitted by his or her Internet service provider from a local server.31 Unless the government has actually traced specific transmissions to an out-of-state server, there is no way of knowing whether the image data received by a client was actually sent across state lines.

Moreover, while it may be difficult or time-consuming for prosecutors to determine whether images found on a defendant’s computer were sent to that computer from another state or country, it is by no means impossible. Just as it is possible to trace interstate phone calls, e-mail transmissions, and other electronic communications, there are a “myriad [of] conceivable paths of proof to establish the movement of pornographic images across state lines.”32 And, of course, the fact that an element may be difficult to prove does not mean that prosecutors or courts can simply ignore it.

Rejecting the Wilson Strategy
If pressed on the jurisdictional element, the government may offer “known” images found on the defendant’s computer that were originally produced in another state or country as “proof” of interstate transmissions. This strategy, however, was rejected in another Tenth Circuit case, United States v. Wilson.33 In Wilson, an expert had testified that some images found on the defendant’s disks were originally produced in Germany.34 The court concluded, however, that the expert did not explain “how those particular images found their way to the diskettes in defendant’s possession,” and the prosecution therefore failed to show how he “could have obtained the files through interstate commerce (e.g., obtaining copies of the German magazines and scanning the images into his computer; downloading copies of the images from an out-of-state computer via the Internet or a BBS [online bulletin board], etc.).”35 The court then rejected “the possibility that [the agent’s] testimony regarding the origination of the images, standing alone, was sufficient to satisfy the jurisdictional element.”36

Underlying the analysis in Wilson is a fundamental question about the nature of “visual depictions” transmitted over the Internet. Image data that is sent to a computer and an actual picture are not the same thing. As the Wilson opinion noted, “the prosecution’s ever-shifting theories” about the interstate element stemmed in part from confusion about “whether a computer graphics file is produced or created prior to being recorded on a particular storage media, or whether, instead, it only comes into being at or after the point it is recorded on the storage media.”37 If it is the latter, it may be irrelevant where the original picture was taken, since that actual picture will never travel across state lines via the Internet. While the image data can reproduce the original picture more or less accurately, it is still necessary to show that the data itself was transmitted across state lines.38

The Schaefer opinion does not attempt to explain how the Internet functions or how it ultimately fits with laws that were not originally enacted with the Internet in mind. Those issues may provide fertile ground for other creative defenses. Schaefer does provide a solid framework for a credible defense to Internet pornography cases that relies on the jurisdictional elements of the receipt and possession statutes, at least in the majority of circuits that have not yet addressed what type of evidence is required to prove the interstate elements. And, as Schaefer itself shows, that type of defense can be successful.

Notes
1. 501 F.3d 1197 (10th Cir. 2007).
2. 18 U.S.C. §§ 2252(a)(2) and 2252A(2) (receipt); 18 U.S.C. §§ 2252(a)(4)(B) and 2252A(5)(B) (possession).
3. See Gonzalez v. Raich, 545 U.S. 1 (2005). See also, e.g., United States v. Chambers, 441 F.3d 438, 454-455 (6th Cir. 2006) (applying Raich’s analysis to Internet pornography).
4. All of the receipt and possession provisions cited in note 2, supra, contain similar language. The statutes also provide for jurisdiction when images “were produced using materials which have been mailed or so shipped or transported, by any means including by computer.” See 18 U.S.C. §§ 2252(a)(2) and 2252A(2)); 18 U.S.C. §§ 2252(a)(4)(B) and 2252A(5)(B) (possession). The government rarely charges cases under these “production prongs,” typically reserving them for defendants allegedly involved in the actual production of pornography.
5. Schaefer, 501 F.3d at 1205.
6. Compare, e.g., United States v. Korab, 893 F.2d 212, 214 (9th Cir. 1989) (reversing conviction under federal extortion statute for “transmit[ting] in interstate commerce any communication containing any threat” where government failed to prove that a threatening telephone communication “was actually transmitted across state lines”); United States v. Oxendine, 531 F.2d 957 (9th Cir. 1976) (reversing conviction under statute prohibiting threats transmitted in interstate commerce when government failed to prove threatening radio transmission crossed state lines).
7. Cf. 18 U.S.C. § 844(e) (proscribing threats made “through the use of the mail, telephone, telegraph, or other instrument of interstate or foreign commerce …”). See also, e.g., United States v. Corum, 362 F.3d 489, 493 (8th Cir. 2004) (when jurisdictional element of federal statute is based on use of an instrumentality of interstate commerce, proof of intrastate use alone may satisfy the element).
8. “It is apparent that Congress elected not to reach all conduct it could have regulated under § 2252(a). Congress’s use of the ‘in commerce’ language, as opposed to phrasing such as ‘affecting commerce’ or a ‘facility of interstate commerce,’ signals its decision to limit federal jurisdiction and require actual movement between states to satisfy the interstate nexus.” Schaefer, 501 F.3d at 1201 (citations omitted).
9. See United States v. Bass, 404 U.S. 336, 349 (1971). See also generally United States v. Dowling, 473 U.S. 207, 213 (1985) (federal crimes “‘are solely creatures of statute’” and “[d]ue respect for the prerogatives of Congress in defining federal crimes prompts restraint in this area, where we typically find a ‘narrow interpretation’ appropriate”) (citations omitted); Williams v. United States, 458 U.S. 279, 290 (1982) (“when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite”) (internal quotations omitted).
10. 501 F.3d at 1198.
11. Id.
12. Id. at 1199.
13. Id.
14. Id. at 1202-03.
15. Id. at 1203.
16. 105 F.3d 740, 742 (1st Cir. 1997).
17. Id. at 742.
18. 105 F.3d at 741 (emphasis added), discussing 18 U.S.C. § 2251(a) (sexual exploitation of a child). See Carroll, 105 F.3d at 742.
19. 105 F.3d at 742.
20. Id.
21. 445 F.3d 237 (3rd Cir. 2006).
22. 445 F.3d at 241-42.
23. 445 F.3d at 2456.
24. Ironically, the court went so far as to fault the appellant for “confusing the nature of jurisdictional basis for his charged offense.” 445 F.3d at 243-44. It was the court, however, that ignored the plain language of the statute and did not address the relevant precedent that clearly distinguishes instrumentality and transportation elements.
25. 501 F.3d at 1205.
26. See Schaefer, 501 F.3d at 1202-03 , and cases cited therein.
27. See also United States v. Runyan, 290 F.3d 223, 241-43 (5th Cir. 2002). Runyan is not discussed in detail in Schaefer, see 502 F.3d at 1204, but is sometimes cited in government briefing further to defend Internet access as “tantamount” to proof of the interstate element. In Runyan, however, the defendant argued that the government had “never proved that any of the particular images in question came from the Internet, rather than from purely intrastate sources.” 290 F.3d at 240. In other words, the defendant assumed that use of the Internet was “tantamount” to interstate transmission, and did not submit evidence during trial to show that use of the Internet did not necessarily involve interstate transmissions.
Even with the argument framed in this limited fashion, the Fifth Circuit noted that it had previously held that “it is not enough for the government merely to introduce evidence indicating that the defendant had Internet access and that the defendant, at some point in time, accessed and downloaded images from pornography Web sites or newsgroups.” Id. at 242 (citing United States v. Henriques, 234 F.3d 263, 266-67 (5th Cir. 2000). See Henriques, 243 F.3d at 267 and n. 10 (emphasizing the need for the government to independently link each image to interstate commerce but declining to reach the issue of what type of proof was required to show interstate transmission). Inexplicably, however, the court then reversed course and concluded that mere downloading from the Internet was sufficient. 290 F.3d at 242-43. It therefore appears that the Fifth Circuit, like the court in MacEwan, ultimately conflated the use of an instrumentality of interstate commerce with proof that matter has been shipped or transported in interstate commerce.
28. 501 F.3d at 1200-01.
29. Id. at 1201.
30. A full explication of this point is beyond the scope of this article, but a more detailed outline of how the Internet operates and the type of expert testimony needed to develop the defense outlined in this article can be found in the briefing for United States v. Robert C. Lee, 197 Fed. Appx. 698 (9th Cir. 2006). The briefs are available online through Westlaw at 2006 WL 2404580. In a per curiam opinion, the Ninth Circuit dispensed with the issues later addressed in Schaefer by concluding, without explanation, that the evidence against Lee was sufficient. Since the opinion was unpublished and it is impossible to tell from the opinion exactly what sufficiency issues were raised on appeal, there is still no controlling authority in the Ninth Circuit that would preclude further challenges based on Schaefer in that circuit.
31. It is also important to keep in mind that even if image data was originally transmitted from a Web site that has a server outside the defendant’s home state, the defendant may very well have downloaded the data from a local server where it had previously been stored in a “cache” server. Like the temporary Internet files or cache on a personal computer, Internet service providers use cache servers to store and transmit data that has previously been received from Web sites and other servers for faster local transmission. Again, the mechanics of the Internet in this respect are best explained with the help of an expert, but it is useful to think of cache servers as local data libraries, and the fact that the data may have been originally “published” from a distant location does not necessarily explain how the specific images on a defendant’s computer or other storage media got there.
32. 501 F.3d at 1205. See also United States v. Coreas, 419 F.3d 151, 158 (2d Cir. 2005) (noting the government’s ability to locate illicit Web sites and obtain particularized information about traffic to and from the site).
33. 182 F.3d 737 (10th Cir. 1999).
34. Id. at 744.
35. Id. (emphasis added).
36. Id. See also Schaefer, 501 F.3d at 1206 (citing Wilson and rejecting government’s argument that foreign language movie and picture of a girl taken in another state proved the interstate element, since “the government offered no proof that the particular images … moved across state lines”).
37. 182 F.3d at 742-433.
38. See United States v. Lacy, 119 F.3d 742, 750 (9th Cir. 1997) (image files downloaded from the Internet are “copies rather than originals” of pictures that were produced elsewhere); see also United States v. Guagliardo, 278 F.3d 868, 871 (9th Cir. 2001) (citing Lacy and concluding that when a computer file containing image data is copied onto a disk “the original is left intact and a new copy of the image is created, so the process ‘produces’ an image”); United States v. Angle, 243 F.3d 326, 341 (7th Cir. 2000) (concurring with Lacy, and concluding that images are “produced” when they are stored on computer equipment). Of course, strict application of the reasoning in these cases might simply invite the government to charge production offenses rather than receipt or possession, but they are useful in showing that the government has often explained the same type of Internet activities in contradictory ways, depending on the type of charge it is trying to prove.


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